No. 88 NAI DFA Legal Adviser's Papers
Dublin, 12 December 1939
Neutrality and recruitment for belligerent armies
1. Before proceeding to examine the above-indicated question, the following distinction must be made between:
(1) The right of a neutral State to prevent belligerents from setting up recruiting offices in its territory, and
(2) The duty, if any, of a neutral State to prevent its nationals from taking service in belligerent armies.
3. With regard, however, to the other aspect of the question, namely, the point whether citizens of a neutral State may be permitted to join belligerent armed forces, the law is not so certain. Many authorities take the strong line (e.g. Fauchille)1 that in these modern times, when mercenary armies have practically ceased to exist, a neutral State ought never to allow its citizens to enrol for service abroad. On the other hand, there is the moral weight of a Hague Convention behind the opposing view that neutrality is not affected by the enlistment in belligerent forces of a neutral's citizens. Article 6 of Convention (No. V) respecting the Rights and Duties of Neutral Powers and Persons in War on Land, signed at The Hague, 18th October, 1907, is as follows:-
'The responsibility of a neutral Power is not engaged by the fact of persons crossing the frontier separately to offer their services to one of the belligerents'.
6. There may appear to be an answer to this manner of viewing the question in the curious fact that only two important States (Great Britain and the U.S.A.) have legislated expressly to prevent their nationals joining foreign armies. That argument is fallacious.
The very change in the character of modern wars which makes it necessary for entire male populations, even of neutral countries, to rally to the flag, renders legislation against taking service with foreign nations entirely superfluous. In this connection one may observe that both Great Britain and the United States still profess a certain respect for the old-fashioned idea of 'voluntary service'.
7. Many countries (probably all States with a conscription law) impose stringent penalties on their male citizens who endeavour to travel abroad during wartime without very special permission. Some countries go a step farther and impose further penalties on such citizens when the purpose of their desertion is that of engaging in a foreign army. These penalties usually apply whether the mother-country is at war or merely neutral.
A very usual way to deal with cases of desertion for foreign enlistment is that of depriving the guilty person of his nationality. Examples of such legislation may be found in the Roumanian Nationality Law of 1924, and the Yugoslavian Nationality Law of 1929 and other modern codes and, notably, in the French Civil Code (among older codes) where naturalised Frenchmen are made liable to loss of French nationality for the offence of enlisting abroad.
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